Citation Nr: 9915883
Decision Date: 06/09/99 Archive Date: 06/21/99
DOCKET NO. 95-27 869 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUES
1. Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for the
cause of the veteran's death, and, if so, whether service
connection for the cause of death is warranted, to include
the issue of whether the appellant has status as a claimant.
2. Entitlement to survivors' and dependents' educational
assistance under 38 U.S.C. chapter 35.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
William L. Pine
INTRODUCTION
The veteran had active military service from August 1960 to
October 1980.
This appeal is from a July 1995 decision of the Department of
Veterans Affairs (VA) New Orleans, Louisiana, Regional Office
(RO), which denied the claim at issue. The Board of
Veterans' Appeals (Board) remanded the case in July 1997 for
preliminary determinations and further adjudication. Those
actions are complete, and the case is again before the Board.
FINDINGS OF FACT
1. At the time of the veteran's death, the appellant was his
legally separated spouse, adjudged without fault in the
separation, who maintained a spousal relationship to the
veteran, from whom she continued to receive financial
support.
2. The appellant remarried during the pendency of this
appeal.
3. The Board denied the appellant's claim of entitlement to
service connection for the cause of the veteran's death in
July 1994.
4. The November 1994 statement of H.D. Colomb, M.D.,
provided evidence the lack of which was material to the
reason for the Board's July 1994 denial of the appellant's
claim.
5. The appellant's claim cannot be resolved fairly without
review of all the evidence, including Dr. Colomb's November
1994 statement.
6. The veteran died of a self-inflicted gunshot wound in
December 1989 at age 49.
7. The veteran had no service-connected disabilities or any
claims pending for service connection of any disability at
the time of his death.
8. The stressors alleged to have precipitated PTSD in the
veteran are not capable of substantiation, and Dr. Colomb's
November 1994 statement does not constitute evidence of a
nexus between a diagnosis of PTSD and a stressor in service.
9. The veteran did not die of a service-connected
disability, or have a total disability permanent in nature
resulting from a service-connected disability, or die while a
disability so evaluated was in existence.
CONCLUSIONS OF LAW
1. The appellant was the veteran's surviving spouse at the
time she initiated the instant claim. 38 U.S.C.A. § 103(c)
(West 1991); 38 C.F.R. §§ 3.1(j), 3.50(b)(1) (1998).
2. The July 1994 decision of the Board denying service
connection for the cause of the veteran's death is final.
38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991 & Supp. 1998).
3. The appellant has presented new and material evidence in
support of her claim and the Secretary must reopen and review
the former disposition of the claim. 38 U.S.C.A. § 5108
(West 1991); 38 C.F.R. § 3.156(a) (1998).
4. The claim of entitlement to service connection for the
cause of the veteran's death is not well grounded, and VA has
no duty to assist the appellant to develop facts in support
of the claim. 38 U.S.C.A. § 5107(a) (West 1991).
5. The basic eligibility requirements for entitlement to
Dependents' Educational Assistance allowance under Chapter
35, Title 38, United States Code are not met. 38 U.S.C.A. §§
3500, 3501 (West 1991); 38 C.F.R. § 3.807 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
A. General and Postural Overview
A December 1989 Death Certificate shows that the late veteran
died in December 1989 of a gunshot wound to the head at age
49.
A Judgment of Separation issued by a state district court in
July 1987 shows that the veteran and the appellant were
legally separated from that date. The judgment shows the
award of separation was to the appellant, finding her to be
free of fault and the veteran to be at fault. The judgment
provided that the veteran could occupy a parcel of jointly
owned property upon condition that he paid a certain bank
note. A July 1997 statement by the appellant reported, in
essence, that she maintained the bonds of affection of
matrimony with the veteran during the rest of his life, hoped
to live together again, never sought divorce or annulment,
and depended upon his payment of the bank note identified in
the Judgment of Separation as part of her material support.
Two lay statements of July 1997 substantially corroborate the
appellant's statement.
In February 1990, the appellant claimed entitlement to VA
dependency and indemnity compensation (DIC) based on the
service connection of the cause of the veteran's death. She
asserted that the veteran's suicide was the culmination
psychiatric illness, specifically post-traumatic stress
disorder (PTSD), and of involvement with Agent Orange [a
common term for several defoliant herbicides], both of which
resulted from the veteran's experiences as a member of the
Air Force serving in Vietnam.
Based on service medical records, lay statements, and sworn
hearing testimony of the appellant, the Board of Veterans'
Appeals denied the claim in July 1994. The Board found as
matters of fact that the veteran had died of a self-inflicted
gunshot wound; that at the time of his death, the veteran had
no service-connected disabilities or pending claims for
service connection; and that there was no clinical evidence
that a psychiatric disorder originating in service led to the
veteran's suicide. The Board concluded, as a matter of law,
that the veteran had not incurred or suffered aggravation in
service of a psychiatric disability, including PTSD; and a
service-connected disability did not cause or contribute
substantially or materially to the cause of the veteran's
death.
In November 1994, the RO received the appellant's request to
reopen her claim for service connection for the cause of the
veteran's death. She submitted a statement of medical
opinion by H.D. Colomb, M.D. in support of her claim.
B. Factual Background
Service medical records begin with a negative medical history
and physical examination in August 1960. In June 1972, the
veteran was under treatment for stomach ulcer, which was
previously treated surgically. The June 1972 record is
partly illegible, but appears to state complaints of being
very nauseous or nervous, and also appears to report the
veteran continued to have 1-2 shots-beers per night.
In March 1977, the veteran was referred to the mental health
clinic for unstated reasons, and administered a psychological
test, the Minnesota Multiphasic Personality Inventory (MMPI).
The reason for the test and the result are not of record. In
April 1977, the veteran was found physically qualified to
participate in an alcohol rehabilitation program. He
underwent Antabuse therapy and detoxification through the
mental health clinic from April to September 1977. A May
1977 hospitalization summary diagnosed history of excessive
drinking. He had been making progress with Alcoholics
Anonymous (AA), but had increased his drinking lately. When
his wife threw him out, he sought hospitalization for
detoxification. A psychiatric evaluation found habitual
excessive drinking without physical addiction.
On hospitalization for alcohol detoxification in August and
September 1977, the veteran reported his first drink and
first intoxication were at age 20, and that drinking had been
a real problem since 1973. He reported having had vague
feelings of fear and anxiety lasting for a day or two and
just kind of a fear of the unknown. He had had some
depression. He said his reasons for drinking, in descending
order of importance, were to relieve emotional stress, to
relieve physical discomfort, to avoid financial problems, to
avoid problems on the job, to avoid marital problems, to be
more comfortable with people, and because he enjoyed the
taste. He felt he was not an alcoholic, but a problem
drinker. He felt his most desirable outcome would be to
abstain from drinking and face reality, to save his marriage.
He felt dealing with his own problems and problems on the job
he could not control made him want a drink. The best effect
of alcohol was that it made him forget.
On consultation the appellant had the MMPI and the STATE-
TRAIT Anxiety Inventories. The results are not of record.
The August-September 1977 hospitalization diagnosis was DSMII
303.1, habitual excessive drinking.
A September 1978 medical history noted habitual drinking,
with a question whether it was related to the veteran's work
environment.
A January 1979 summary of hospitalization for detoxification
noted the veteran had had problems with excessive drinking,
"for a long, long time." The current acute intoxication
had begun three days earlier and was related to recent
separation from his wife. The night of admission, he had
called a friend and conveyed some weak suicidal indications.
His friend arranged the hospital admission. Prior medical
history noted multiple ulcers secondary to excessive alcohol.
Also noted was some anxiety about being released after
detoxification. He was readmitted in February 1979 with
acute intoxication and for detoxification. A March 1979
clinical record cover sheet shows diagnoses of acute alcohol
intoxication and personality disorder manifested by alcohol
abuse.
A June 1979 summary of hospitalization for detoxification
showed a diagnosis of alcoholic habitual excessive drinking.
He reported that he continued drinking after his September
1977 detoxification, but without excess until six months
before. He initially blamed it on various things, but it was
felt it all came down to his wife and children leaving him
and his excessive jealousy and punitiveness to the family.
On psychiatric history, he reported he started drinking in
his late teens, but did not consider it a problem until two
years before. It was noted at discharge there were no
biological signs of depression.
The veteran participated in an inpatient alcohol treatment
program in July 1979. He admitted he began drinking at age
21 and had been drinking ever since, consuming in excess from
about 1971. He reported having four "Article 15s," all for
being late to work because of alcohol, and being reduced in
grade from E-6 to E-3 in 18 months. He related that he felt
most of his drinking was due to marital problems. On mental
status examination, he did not appear depressed.
In an August 1979 medical history, the veteran reported he
started sleepwalking in Vietnam in 1971, and continued for
about six months upon return to the States. He gave a
history of palpitations or pounding heart, which he related
to nervous trouble and smoking. He also gave history of
chronic insomnia, chronic nervous trouble, and chronic
depression or excessive worry. All were noted by the medical
review to not require treatment. A medical examination
performed at the same time was negative for psychiatric
findings.
The appellant was hospitalized for acute alcohol intoxication
and treatment of alcohol addition in August and September
1979. A past psychiatric history on admission noted a
history of alcohol rehabilitation programs dating from
September 1977, stating, "There are no other psychiatric
problems."
A January 1980 medical history for separation was essentially
the same as that given in August 1979.
The veteran's DD 214 shows he was honorably discharged in
October 1980, with numerous performance-related commendations
and medals. There is no record of the award of any Air Force
medal, commendation, or citation related to engagement in
combat.
In January 1986, the veteran wrote to a United States Senator
seeking help in obtaining reinstatement of his highest
military rank and retirement benefits commensurate with that
rank. He described his excellent service record for eleven
years prior to his service in Vietnam. He reported spending
a year in Vietnam. He stated his experience there left him
disillusioned, frustrated and bitter with himself and the
military situation there, and he also developed a severe
alcohol problem. When he returned home he had extreme
difficulty adjusting to the "soft" military life in the
States and the attitude of those who had not been in Vietnam.
His drinking became worse and his marriage suffered. His
wife did not understand, and asked him to leave in 1979. He
became more frustrated, bitter, and angry. Subsequently, he
rebelled against authority, and in April 1979 was charged
with failure to repair and dereliction of duty. He had
reductions in rank from E-6 to E-3 after a court-martial and
eight Article-15s. He stated that since retiring he had
tried to put his bitterness about Vietnam and his court
martial aside, had received treatment for alcoholism,
remarried, and felt his life had turned around. He felt his
rank had been taken away by a compassionless military for his
temporary inability to adjust upon his return from Vietnam.
He said he had not tried to defend himself because at the
time he did not care, and did not realize how depressed he
was.
An undated police report described the circumstances under
which the veteran was found dead. The December 1989 death
certificate showed the cause of death as gunshot wound to the
head. An autopsy report of January 1990 concluded the
veteran's fatal gunshot wound of the head was consistent with
a self-inflicted wound. No fatal natural disease processes
were noted.
In an April 1990 statement, in her initial claim for DIC, the
appellant noted the veteran's excellent service performance
records and many medals and commendations for excellent
service. She opined that Vietnam and the resulting breakup
of his family were the main reasons he became depressed and
began drinking excessively. She discovered after they
married that he had nightmares, talked about Vietnam
constantly, read all of the books and saw all of the movies
about the war and then would rant and rave for days.
In October 1991, the appellant submitted statements from
three of the veteran's sisters, a niece, an employer, and the
veteran's priest, variously dated in April or May 1991, or
undated. Sister L. reported the veteran grew up without
problems, but that he had many mental problems after Vietnam,
which she believed were related to his experiences there. He
became distant, and when not drinking he would talk about
Vietnam, and then stop, as if it was painful, saying she did
not understand. She felt she did, because her son had fought
in Vietnam and nearly committed suicide upon his return.
Sister C. reported the veteran had been a well-adjusted
youth, but his tour of duty in Vietnam left him with
problems. He had mentioned having flashbacks of incidents of
action. He did not talk about what happened.
Sister D. reported the veteran talked about Vietnam quite a
bit, becoming very depressed, and asking, "Why?" He had
had no drinking problem until he came back from Vietnam, and
he could not cope as he had before going.
The veteran's niece said they were near one another in age
and grew up together. She said his time in Vietnam put him
down hill. After Vietnam he yelled and treated his family
like soldiers. She reported he said there were things he
would never understand about the war in Vietnam, and when
asked what, would reply, "You don't want to know." She
reported that the first time he drank after his second
marriage, he did not come home. She found him at a place
called the spillway with his van parked, open and with knives
and guns out, like he was guarding his camp; he thought he
was in Vietnam. She said that on New Year's Eve 1989, while
going through his possessions, she listened to an audio tape
recording of the veteran, who said, "This is [name]. I was
in the Air Force for 21 years. I saw things that most people
never hear about," then the tape ended.
An employer of the veteran reported he hired the veteran in
the mid-80s, and he was an excellent employee with obviously
unutilized capabilities. The veteran spoke of his important
responsibilities in the service as a fuel supplier, but
declined promotions and raises. When asked about Vietnam,
the veteran would say how unbelievable it was, but would
refuse to say more.
B.G. reported that the veteran was a candidate for religious
conversion, whom he saw for spiritual and emotional
counseling. He stated the veteran without fail spoke of
emotional difficulties as having roots in his military
experiences in Vietnam. The veteran consistently traced his
inability to cope with the normal stress of life to
difficulties dealing with enormous guilt regarding his
service in Vietnam. Weeks before his death, the veteran was
highly agitated, almost incoherent, and once again brought up
the problems he developed in Vietnam and his ongoing struggle
to exonerate himself and to expunge the imagined culpability
for the atrocities he witnessed there and was powerless to
prevent.
In an October 1991 statement, the appellant reported that she
met the veteran in 1982, and she had no knowledge of his Air
Force career except what he told her. She had received and
reviewed his service records since his death, and pieced
together the facts. She said after they married, she learned
of his nightmares, shakes, and screaming awakenings. She
reported his chronic inability to sleep, staying awake all
night or sleeping in a chair. The veteran refused to talk
about his problems. He felt he could handle them himself.
He was moody, with severe emotional swings. When he did
speak of his problems, Vietnam always came up. He spoke of
the ridicule and rejection he experienced upon return to the
United States. He said he saw some horrible situations in
Vietnam that were hard to cope with. She said the taunts he
received upon return made him feel less than the man he was.
She said the appellant could not handle the rejection, and
his suffering increased when his wife did not understand what
he was going through, which caused him to increase his
drinking. She said he was a proud man, and his loss of rank
was a blow to his pride. She said his record before Vietnam
had no mention of alcohol or emotional problems, and the
first such record she found was after his return from
Vietnam. She asserted that evidently, he did not have a
severe problem until his return from Vietnam when he felt
rejected by his country and his first wife. She reported an
incident in which he went berserk at a local Christmas Eve
bonfire at which children threw firecracker, as was
customary, and he grabbed at the children, warning them of
gunfire. She reported the spillway incident, noting it as in
1985, in which he had set up camp and threatened anyone who
came near, screaming that this was Vietnam.
The appellant testified at a VA hearing in December 1991.
She reiterated her contention that the veteran's suicide
resulted from chronic depression that began in Vietnam, and
that he suffered from PTSD. She said he became violent when
Vietnam was mentioned. She reported he had had no
psychiatric treatment during his life, only treatment for
alcoholism. He once began but did not stay for treatment at
a private hospital. His only other treatment was at a VA
medical center. She said the veteran appeared chronically
depressed, and he handled his emotions by performing
strenuous labor until he was exhausted. He became enraged
when he heard anything on TV about the war in Vietnam. He
had flashbacks, thrashed about at night, and screamed.
When asked by her representative if the veteran had ever
discussed any kind of stressful event in Vietnam, she said he
did not talk about it that much. She said he once told her
that he had become lost in the jungle for 10 or 12 days. He
had gone to walk the fuel pipeline to ensure it was not
sabotaged, because he felt he should do anything his men had
to do. He said he got lost when he had to hide in the jungle
from some Viet Cong. He had only his knife, and it took him
10 or twelve days to get back. She said he had also feared
being bombed and blown up while handling explosive jet fuel.
He had also been troubled by the thought that in refueling
planes; he could be sending men to their deaths. She said he
began drinking in Vietnam, and noted there was no record of
his drinking before Vietnam.
She said the veteran was irritable, and the neighbors were
scared of him. He was hypervigilant. He was always ready
for war. He kept a large "war bag" full of survival gear,
and he would not go anywhere without it. He insisted on
taking the family camping and teaching survival skill, just
in case. He felt they had to be ready for nuclear war at all
times. She said he did not drink for the first year of their
marriage. She said he had depression every day, but he was
never treated for depression because he felt he could handle
it. She said treatment at VA had not helped, and the only
thing that stopped him from drinking was being hauled to
jail, and he only went to VA for treatment as an alternative
to jail. They went to AA together for a year after that
treatment, but whenever anyone at a meeting brought up
Vietnam, he would tell people not to talk about that.
In March 1992, the National Personnel Records Center (NPRC),
the official repository for the veteran's military records,
responded to the RO's request for information on the
veteran's assignments, dates, participation in combat, wounds
received in action, awards, and official travel outside of
the United States. NPRC reported that no AF-7 (Airman
Military Record) or AF-11 (Officer Military Record) was on
file.
NPRC furnished performance reports for essentially the
veteran's entire service career. These showed the veteran
was evaluated throughout his career among the highest 20
percent, and many times among the highest 10 percent, of his
peers in virtually all evaluation categories. He had a
perfect evaluation for the period May 1971 to April 1972, at
which time he was assigned and evaluated as a member of he
366th Supply Squadron, DaNang Airfield, Vietnam. No other
evaluation was performed in Vietnam. The periodic reports
after the one done in Vietnam continued with highest (ninth)
decile ratings until the period September 1976 to June 1977,
which included several eighth decile ratings. The final
performance report, July 1978 to February 1979 included
seventh decile ratings for "Acceptance of NCO
Responsibility," and for "Bearing and Behavior," the only
ratings below the eighth decile in the veteran's career.
In May 1992, two acquaintances of the veteran's wrote
statements reporting their knowledge of the appellant as
emotionally troubled and deeply depressed. Both affirmed
that he had not believed he had a problem and that he would
not seek treatment.
A November 1992 statement from a local police sergeant
reported her recollection of the spillway incident. She
described the spillway, essentially, as a regional camping
area. She described responding to a call, and finding the
veteran with a bible in his hand, saying it was his only
salvation for doing the things he had in Vietnam. She said
with each quote, he turned to the book to try to justify the
killing and other things he would flashback to. She said he
screamed, "I told you guys to get down," and she had no
doubt he was back in Vietnam fighting to protect what was
left of his unit. The sergeant noted she had no degree in
psychology, but had extensive training as far back as
college, and had hostage negotiation and crisis intervention
training dealing with post-traumatic syndrome. She said she
felt the veteran truly believed he was back in Vietnam and
would have done anything to protect his guys. She asked him
what he had a weapon for, and he said to end this life once
and for all, that the service had already taken his life, and
he just wanted to end the living part.
In July 1994, the Board denied the appellant's claim, for the
reasons stated above.
In November 1994, the appellant submitted a medical statement
by H.D. Colomb, M.D., who reported he is the medical director
of the Evaluation and Brief Treatment Unit for PTSD at a VA
medical center. He stated he reviewed the records of the
veteran to determine whether he suffered from PTSD. Dr.
Colomb noted, with citation to specific service medical
records, documentation in the record of chronic insomnia,
chronic depression with excessive worry, and chronic nervous
trouble as well as sleep walking, which began in 1971 while
serving in Vietnam and lasted about six months after
returning to the United States. He noted reports of vague
feelings of fear and anxiety and fear of the unknown, and of
weak suicidal indications. He noted the reasons the
appellant reported for drinking in the January 1979 hospital
summary. Dr. Colomb concluded it was clear from these
records that the veteran evidenced mental problems in service
dating back to 1971. He opined that sleep walking was a
reaction to stress. He opined the stomach ulcers as early as
1967 showed a reaction to stress in service. He opined that
being lost in the jungle and witnessing atrocities certainly
qualified as major stressors under the "A" criterion for
diagnosing PTSD. He said these were verified by the
witness's statements from their descriptions.
The doctor opined that the veteran's nightmares, intrusive
thought, flashbacks, extreme distress at things that reminded
him of Vietnam and a clear hyperactivity to things such as
fireworks that reminded him of Vietnam fulfilled all five of
the "D" criteria of PTSD. The descriptions of efforts to
avoid thoughts or feelings associated with the trauma,
efforts to stay away from other veterans or people who would
remind him of the trauma, feelings of isolation with
restricted feelings and affect fulfilled the "C" criteria.
He noted that these symptoms lasted more than six months and
satisfied the "E" criteria. Thus, upon examining the
affidavits of the various friends, relatives, and spouse, the
veteran fulfilled all the criteria for PTSD, chronic, severe.
The doctor commented that on overview, he saw the veteran as
a person who did extremely well in service, was exposed to
atrocities and other horrific events in Vietnam, even though
he was not on the front lines, and started sleep walking in
Vietnam, indicating a major reaction to stress. There was
gradual deterioration on return, including becoming
rebellious, which is typical of the Vietnam veteran, even
though he was a career airman; trying to compensate by
becoming an alcoholic and workaholic, suffering from
continual guilt, nightmares, flashbacks, uncontrolled rage,
and eventually killing himself. He opined this was a classic
PTSD pattern for the Vietnam veteran. He concluded that
therefore, it was his opinion that the veteran did suffer
from PTSD secondary to the Vietnam War experience.
A marriage certificate of September 1995 shows the
appellant's remarriage.
In September 1997, the RO received VA hospital and treatment
records of June and July 1985. They show the veteran's
admission for and diagnosis of alcohol dependence,
continuous. The veteran reported having a problem drinking
since 1975. In treatment records, the veteran reported being
a heavy drinker for 20 years. Rehabilitation clinic notes
stated the primary diagnosis as alcohol dependence.
II. Analysis
A. Status as Claimant
In July 1997, the Board remanded this case because the
appellant had reported she was separated from the veteran at
the time of his death. The statement raised the question
whether she was the surviving spouse of the veteran for VA
purposes. Without that status, she would not be a valid
claimant for the benefit she sought, a prerequisite to any
other VA action on her claim. See Aguilar v. Derwinski, 2
Vet. App. 21 (1991).
The appellant is claiming benefits as the widow of the
veteran. For purposes of entitlement to VA benefits,
"widow" is defined by regulation to be "a person whose
marriage to the veteran meets the requirements of § 3.1(j)
[38 C.F.R. § 3.1(j)] and who was the lawful spouse of the
veteran at the time of the veteran's death and (1) Who lived
with the veteran continuously from the date of marriage to
the date of the veteran's death except where there was a
separation which was due to the misconduct of, or procured
by, the veteran without the fault of the spouse . . . ."
38 C.F.R. § 3.50(b)(1) [Emphasis supplied].
The Judgment of Separation and supporting lay statements
submitted by the appellant sufficiently demonstrate that her
separation from the veteran was due to his misconduct and was
without her fault. She was the veteran's widow at the time
of his death. Additionally, although she remarried during
the pendency of this case, she was the surviving spouse at
the time she initiated her claim to reopen, and she has the
status of a claimant for VA benefits.
B. Whether New and Material Evidence has been Presented or
Secured to Reopen a Claim for Service Connection for the
Cause of the Veteran's Death
In seeking service connection for the cause of the veteran's
death, the appellant seeks to establish that the death of the
veteran was due to a service-connected disability.
38 U.S.C.A. § 1310 (West 1991). That is, the appellant seeks
to establish that the veteran's death resulted from disease
or injury incurred in or aggravated by service. 38 U.S.C.A.
§§ 1110, 1131, 5107(b) (West 1991). Such a disability is
called "service connected." 38 U.S.C.A. § 101(16) (West
1991).
Service connection connotes many factors
but basically it means that the facts,
shown by evidence, establish that a
particular injury or disease resulting in
disability was incurred coincident with
service in the Armed Forces, or if
preexisting such service, was aggravated
therein. This may be accomplished by
affirmatively showing inception or
aggravation during service or through the
application of statutory presumptions.
38 C.F.R. § 3.303(a) (1998).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. 38 C.F.R. § 3.312 (1998).
Where the veteran's death was by suicide, it constitutes
willful misconduct, for which service-connection is
precluded, if the act of self-destruction was intentional.
However, a person of unsound mind is incapable of forming
intent. Favorable action on the appellant's claim requires a
finding that the precipitating mental unsoundness be service
connected. See 38 C.F.R. § 3.302(a) (1998).
When the RO denies an attempt to reopen a claim and that
issue reaches the Board on appeal, the Board must determine
first whether new and material evidence has been presented or
secured, second, whether the claim as reopened is well
grounded, and third, if the claim is well grounded (after
ensuring the duty to assist under 38 C.F.R. § 5107(b) is
discharged), evaluate the merits of the claim. Winters, 12
Vet. App. 203.
When the Board denied the appellant's claim in July 1994,
that decision was final. 38 U.S.C.A. § 7103(a) (West Supp.
1998); 38 C.F.R. § 3.160(d) (1998). When the Board disallows
a claim, the claim may not thereafter be reopened and allowed
and a claim based upon the same factual basis may not be
considered, 38 U.S.C.A. § 7104(b) (West 1991), unless new and
material evidence is presented or secured. 38 U.S.C.A.
§ 5108 (West 1991). No other standard than that articulated
in the regulation applies to the determination whether
evidence is new and material. See Hodge v. West, 155 F.3d
1356 (Fed. Cir. 1998).
New and material evidence means evidence
not previously submitted to agency
decisionmakers which bears directly and
substantially upon the specific matter
under consideration, which is neither
cumulative nor redundant, and which by
itself or in connection with evidence
previously assembled is so significant
that it must be considered in order to
fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (1998).
The evidence to be reviewed for sufficiency to reopen a claim
is the evidence submitted since the most recent final denial
of the claim on any basis. Evans v. Brown, 9 Vet. App.
273(1996). For the purpose of determining whether evidence
is new and material, its credibility is presumed. Justus v.
Principi, 3 Vet. App. 510 (1992). Thus, evidence submitted
since July 1994 is of concern for the purpose of reopening
this case.
The medical opinion by Dr. Colomb provides a crucial element
of evidence that was missing from the record when the Board
reviewed the claim in July 1994, a diagnosis of PTSD. The
statement is patently new evidence. The regulation does not
identify the qualities evidence must have to be "so
significant that it must be considered in order to fairly
decide the merits of the claim." 38 C.F.R. § 3.156(a). At
the least, it is reasonable to require evidence submitted
since July 1994 to "contribute to a more complete picture of
the circumstances surrounding the origin of a veteran's
injury or disability, even where it will not eventually
convince the Board to alter its ratings decision." Hodge,
155 F.3d at 1363. The doctor's statement makes such a
contribution to the record. It provides the missing
diagnosis necessary (but not alone sufficient) to
substantiate the appellant's contentions. The appellant has
presented new and material evidence, and the claim shall be
reopened and the previous disposition reviewed. 38 U.S.C.A.
§ 5108 (West 1991).
The Board may undertake review of a matter not adjudicated by
the RO if such review is without prejudice to the appellant.
Bernard v. Brown, 4 Vet. App. 384, 389 (1993). The RO's
adjudication of July 1995 actually reviewed the merits of the
claim underlying the appellant's application to reopen,
albeit erroneously (as the adjudication ought have been
limited to the question whether the previously disallowed
claim could be reopened). The July 1995 statement of the
case informed the appellant of the laws and regulations
pertinent to the merits of the claim for DIC. In light of
such adjudication of the merits, the question of prejudice by
the Board's addressing a matter not adjudicated below may be
moot, even though the July 1998 supplemental statement of the
case portrayed the case as denied for lack of new and
material evidence. Ultimately, the record shows the
appellant has argued in detail the merits of her claim. She
declined a hearing, showing her awareness of her right to a
hearing. She is represented, and her representative has
addressed the merits of the claim for DIC benefits. When the
above criteria are met, the Board may reach the merits of a
matter without prejudice to the appellant. VAOPGCPREC 16-92
(O.G.C. Prec. 16-92).
C. Well Groundedness
"A person who submits a claim for benefits under a law
administered by the Secretary [of Veterans Affairs] shall
have the burden of submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim is
well grounded." 38 U.S.C.A. § 5107(a) (West 1991). If the
appellant does not meet that burden, the Board will not
consider the merits of the underlying claim. Grottveit v.
Brown, 5 Vet. App. 91 (1993). A claim reopened upon
submission of new and material evidence must also be well
grounded to be reviewed on its merits. Winters, 12 Vet. App.
203.
"For a claim to be well grounded, there must be (1) a
medical diagnosis of a current disability; (2) medical, or in
certain circumstances, lay evidence of in[-]service
occurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between an in-service [disease or
injury] and the current disability." Epps v. Gober, 126
F.3d 1464, 1468 (Fed. Cir. 1997) (quoting Epps v. Gober, 9
Vet. App. at 343-44 (citations and quotations omitted)); see
Grottveit, 5 Vet. App. 91 (characterizing the type of
evidence, lay versus medical, necessary to well ground a
claim as dependent on the nature of the matter to be proven);
see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (lay
individuals are competent to testify about matters of common
experience, but expert qualification is necessary for VA to
take cognizance of testimony that is rendered reliable only
by expertise pertinent to object of inquiry).
To the extent the appellant's claim includes a contention
that exposure to Agent Orange contributed to the veteran's
suicide, it is wholly unfounded. An opinion on a
relationship between exposure to herbicides and subsequent
suicide is beyond lay competency. Espiritu, 2 Vet. App. 492.
There is no other evidence, and no more need be said on this
point.
Underlying the criteria of a well-grounded claim is the
fundamental precept that "[a] well grounded claim is
plausible, one which is meritorious on its own or capable of
substantiation." Murphy v. Derwinski, 1 Vet. App. 78
(1990). To be well grounded, the instant case requires
evidence reaching an element of the claim peculiar to claims
for service connection for the cause of the veteran's death,
a link between any service-connected disability and the cause
of the veteran's death, in this case, suicide.
The appellant must also have provided the usual elements of a
well-grounded claim for the Board to reach the merits of the
case. The claim is predicated on the theory that PTSD
precipitated the veteran's suicide, and that the PTSD was
related to the veteran's military service. There must be, in
addition to the diagnosis of PTSD, competent evidence of an
in-service stressor, and a link between a specifically
identified stressor and the diagnosis. 38 C.F.R. § 3.304(f)
(1998). Such evidence is necessary to well ground the claim.
Cohen v. Brown, 10 Vet. App. 128 (1997).
Dr. Colomb's diagnosis would suffice as the "current
diagnosis" element of a well-ground claim for service
connection for PTSD, were that the claim at issue. VA
regulation provides for VA to obtain independent medical
expert opinions, 38 C.F.R. § 3.328 (1998), which generally
are provided based upon review of records without examination
of the person. Therefore, there is nothing inherently
disqualifying about the doctor's lack of examination of the
veteran.
Where the determinative issue does not require medical
expertise, lay testimony may suffice by itself. Robinette, 8
Vet. App. at 74. The rules of hearsay evidence . . . are not
applicable to the BVA decision-making process. Flynn v.
Brown, 6 Vet. App. 500, 503 (1994). "The well-grounded
claim requirement [in VA's] nonadversarial process resembles
the rule applied in civil action to determine whether a
complaint has stated a cause of action . . . for which
purpose the facts alleged are accepted as true." Robinette,
8 Vet. App. at 75.
[T]he evidence submitted in support of a
claim "must . . . be accepted as true
for the purpose of determining whether
the claim is well grounded . . . [except]
when the evidentiary assertion [other
than in a government record] is
inherently incredible or when the fact
asserted is beyond the competence of the
person making the assertion."
Id. at 75-76, quoting King v. Brown, 5 Vet. App. 19, 21
(1993).
There are two items of evidence of the veteran's stressors in
Vietnam, and Dr. Colomb relied on both of them in making his
diagnosis. First, the veteran's priest referred to the
veteran telling him of the effect on him of witnessing
atrocities. Second, the appellant testified that the veteran
told her of an episode of being lost in the jungle for 10 or
12 days. The statements are simple hearsay. That is, they
are offered to prove the truth of an event reported by a
third party, the veteran. No particular expertise is
required to reiterate what the veteran said. Thus, the
statements cannot be rejected for lack of competence of the
person making the assertion.
The priest's statement is not inherently incredible. It does
not assert something that of itself seems impossible. The
testimony of being lost in the jungle for 10 to 12 days in
the vicinity of a major airfield with jet aircraft coming and
going around the clock is inherently incredible. The Board
does not have to accept such testimony as true, even to well
ground the claim.
The Robinette Court provided further guidance on the
necessary quality of evidence for it to well ground a claim.
As our . . . jurisprudence . . . makes
clear, to be well grounded a claim need
not be supported by evidence sufficient
for the claim to be granted. Rather, the
law establishes only a preliminary
threshold of plausibility with enough of
an evidentiary basis to show that the
claim is capable of substantiation (if it
is not meritorious when initially
presented).
8 Vet. App. at 76 (citations omitted). This claim was not
meritorious when initially presented. It was initially
presented without numerous of the evidentiary elements of a
well-grounded claim. The appellant has submitted evidence
over time, culminating in the submission of evidence
sufficient to reopen the claim and again raise the question
whether it is well grounded. Winters, 12 Vet. App. 203
Dr. Colomb opined that the veteran had PTSD, resulting from
his service in Vietnam. He can be interpreted as attributing
the suicide to the PTSD in his summary statement describing a
life course for the veteran terminating with suicide as a
"classical Post Traumatic Stress Disorder pattern for the
Vietnam Veteran." However, in the stressor or stressors
underpinning the diagnosis are not capable of substantiation.
The link between the diagnosed PTSD and the suicide cannot
provide the nexus between the diagnosis and service.
The fundamental defect in the statements about the veteran's
stressors is that they are not capable of substantiation. No
statement of record regarding the veteran's service in
Vietnam can be substantiated. Even Dr. Colomb's diagnosis
cannot be linked to a stressor if the stressor is not
verified. The police sergeant's November 1992 statement is
presumed truthful; it is acceptable as evidence that the
veteran acted a certain way, and that the police sergeant
perceived it as a flashback of events in Vietnam,
specifically fighting to save the last of his men. That such
an event ever happened is utterly incapable of
substantiation.
There is no evidence of record capable of substantiation that
the veteran suffered psychic trauma in Vietnam. Dr. Colomb
reached a conclusion from his interpretation of behaviors
based on an assumption that was indispensable to his
diagnosis. The assumption was that uncorroborated stressors
occurred. However, a link between the diagnosis and the
stressor cannot be made, because the asserted stressor is
incapable of verification. The stressor must be capable of
substantiation, or the purported link fails. Dr. Colomb's
opinion does not provide the nexus element necessary to well
ground the appellant's claim.
The appellant and other lay affiants ardently assert the
links between service and PTSD and between PTSD and the
veteran's death. Such assertions, however heartfelt, are
beyond the competence of each lay person making the
assertion. It is a tragedy that the veteran took his life.
The reason or reasons are beyond the competency of a lay
person to more than speculate.
The appellant's claim of entitlement to service connection
for the cause of the veteran's death is not well grounded.
38 U.S.C.A. § 5107(a). VA has no duty to assist the
appellant in developing facts in support of the claim.
D. Entitlement to Chapter 35 Survivors' and Dependents'
Educational Assistance
Dependents' Educational Assistance allowance under Chapter
35, Title 38, United States Code may be paid to a child or
surviving spouse of a veteran who meets certain basic
eligibility requirements. Basic eligibility exists if the
veteran: (1) was discharged from service under conditions
other than dishonorable, or died in service; and (2) has a
permanent total service-connected disability; or (3) a
permanent total service-connected disability was in existence
at the date of the veteran's death; or (4) died as a result
of a service-connected disability; or (if a serviceperson)
(5) is on active duty as a member of the Armed Forces and now
is, and, for a period of more than 90 days, has been listed
by the Secretary concerned as missing in action, captured in
line of duty by a hostile force, or forcibly detained or
interned in line of duty by a foreign Government or power. 38
U.S.C.A. §§ 3500, 3501 (West 1991); 38 C.F.R. § 3.807 (1998).
The veteran did not die of a service-connected disability.
Whereas he had no service-connected disability whatsoever
during his lifetime, none of the criteria of entitlement to
survivors' and dependents' educational assistance can be met
in this case. Id.
Under these circumstances, the appellant does not meet the
basic eligibility requirements for entitlement to Chapter 35
Dependents' Educational Assistance, and her claim, therefore,
must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) (where the law and not the evidence is dispositive,
the claim should be denied or the appeal to the BVA
terminated because of the absence of legal merit or the lack
of entitlement under the law).
ORDER
Whereas the appellant has not submitted a well-grounded claim
for service connection for the cause of the veteran's death,
the claim is denied.
Entitlement to Chapter 35 Survivors' and Dependents'
Educational Assistance is denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals